DWI Defense Update: Arizona Drivers Arrested, Convicted for Marijuana-related Drug DUI without Being High

April 15, 2013

Here in New Jersey, the frequency of drunk driving arrests keeps state and local police busy, not to mention the courts and DWI defense lawyers such as the experienced legal team at my law firm. The typical cases that we see quite a few of are the usual drunk driving offenses that developing out of a routine traffic stop, which likely was precipitated by a fairly minor moving violation or vehicle infraction. The more serious cases involve actual property damage or personal injuries coupled with an accusation of drunken driving.

Of course, drunk driving, or DWI, is only one kind of impairment-related driving offense. When reading the various and sundry news items in Garden State newspapers or online, quite often one will come across references to DUI arrest. While DWI and DUI are used interchangeably by the public, the latter is an abbreviation for driving under the influence. The only question here would be: Under the influence of what?

For many motorists arrested for DWI or DUI, alcohol is the usual substance causing the alleged impaired vehicle operation. However, there is a segment of those arrested for impaired driving who may never have touched a drop of alcohol prior to their arrest on a New Jersey roadway or at a sobriety checkpoint. For those individuals, the police typically look for some kind of narcotic drug use (pointing to a possible charge of drug DUI).

In many instances, a driver may not even realize he or she was under the influence of some substance at the time of being pulled over by a state trooper or municipal cop. Quite frankly, many individuals who take doctor-prescribed medication might not even realize the effects that certain drugs have on one's ability to safely operate a car, truck or motorcycle. But this is only one side of the drug DUI story.

The other side of the coin, when it comes to drug-related DUIs, is the use of a controlled dangerous substance (or CDS) and its effect on a motorist's ability to control a motor vehicle. Besides being illegal in general, commonly used CDSs include marijuana, cocaine, heroin, methamphetamine illegally procured or produced, as well as others. For drivers who are caught both in possession of these types of drugs, as well as under the influence of same, the need for a legal consultation with an experienced DWI-DUI lawyer can be closely coupled with the criminal aspects as well.

As an aside, we saw something a short while ago that may bother some people who enjoy a little marijuana from time to time. According to news reports, motorists in a number of states who may not be impaired (or otherwise high on marijuana) are still being arrested and charged with drug DUI at various sobriety-like checkpoints. This news may be a bit unnerving to those who may travel to those particular states, since it isn't beyond the scope of probability that they could be caught up in a DUI roadblock while on vacation or business.

What is driving this latest out-of-state effort to nab motorists who may have smoked a little weed in the past week or two is something that lawmakers in Arizona -- and the eight other states -- included in the wording in their DUI statutes. This may or may not be a blatant attempt in those states to punish drivers who have any trace of an illegal substance in their bloodstream even though the level does not actually cause impaired driving. And apparently it's legal, so far, because in these states, their supreme courts have reportedly upheld drug DUI convictions against individuals who were not demonstrably under the influence of any substance.

So, from Arizona to Utah, across to Iowa, and as far east as Delaware and Rhode Island, drivers are apparently being taken into custody, spending time in jail and paying large fines -- even losing their driving privileges - after being charged with DUI although no trace of any CDS could be found in their system. It sounds incredible, but to those individuals who have been accused, tried and convicted in these states, it's real enough.

According to news articles, while the actual practice of convicting someone who has no drugs in their bloodstream makes no logical sense, the laws in these nine states is written in such a way that state and local prosecutors are able to bring a conviction based solely on an altered interpretation of the DUI statutes. It would also seem that none of these states' legislatures has been bothered to fix the law either.

So, how can a driver, who is not high or otherwise impaired by cannabis be legitimately arrested, charged and convicted in a court of law for drug DUI? It's apparently all in the science; with a fair amount of politics added for extra staying power.

Under "normal" circumstances, a blood test can be used to detect two critical chemical compounds associated with the ingestion of marijuana. One of these is the relatively well-known "THC" (or tetrahydrocannabinol), which tends to give human beings a high that can last for several hours. The other chemical, which is inactive, is created as the body works to neutralize the THC in the bloodstream. This other chemical compound can linger in detectable amounts in a person for as long as several weeks to a month.

Out in Arizona, the legal statutes are written in such a way that if a driver has either of these chemicals in their bloodstream, that person can be convicted of driving under the influence. The example given by critics is that an individual could travel to a state where recreational use of marijuana is legal, smoke the substance while on vacation and upon his or her return to Arizona, be stopped by police and arrested for DUI -- all while having never committed an illegal act in that state or the other.

Unfortunately for some drivers who enjoy cannabis from time to time, the Arizona Court of Appeals upheld the state's law that says if ANY "metabolite" of a drug (such as marijuana) is detected in an individual's bloodstream, then that person can be found guilty of driving under the influence. One can only comment that this is a case of bad legislation based on "good science." At the very least, it could certainly come under the heading of creative application of the law.

While Arizona seems reticent to change its statutes to be more reasonable from a strictly DUI standpoint, other states have actually tried to narrow the definition of legal impairment. In Washington state, as an example, a driver is ruled impaired if a blood test detects 5.0 nanograms of THC per volume of blood. That amount, according to reports, can result in impairment similar to the 0.08 percent blood-alcohol content limit applied almost universally for drunk driving.


Drivers aren't high but still busted for DUI: Column; MarshfieldNewsHerald.com; March 11, 2013